Women and the Militia

“Because no Colony or independent State formally enrolled women in her Militia during the pre-constitutional era, some superficial students of this subject might advance the syllogism: anyone excluded from the Militia during pre-constitutional times should (or at least may) be excluded from the Militia today; women were excluded from the Militia in that era; therefore, women should (or at least may) be excluded from the Militia today. That conclusion is false, however.”

Women and the Militia

In the pre-constitutional era, the full duty to keep and bear arms defined in the colonial and State Militia Acts applied only to all able-bodied adult free males, but never to free women and usually not to male slaves. Adult free women however, were often required by law to provide firearms, ammunition, and accoutrements for their minor sons and their male apprentices and servants enrolled in the Militia— so in this limited sense, free women too, were subject to a duty to keep arms. And in times of crisis, armed women who organized themselves in their own military company’s were not unknown. (footnote 1)

The duty to keep and bear arms carried with it an implicit right to do so, without such fulfillment of the duty would have been problematic or even impossible. So, “the people” who appertained the right and duty to keep and bear arms in relationship to the Militia consisted of all adult free males (for all purposes) and certain adult women (for certain purposes). Moreover, no statute in that era ever generally disbarred any free men or women from themselves possessing firearms in their homes, or from carrying them abroad for any legitimate purpose reason unrelated to the Militia. (footnote 2)

In the pre-constitutional period women were not required to serve in “a well regulated Militia”. Why?

Answer : Because women were not legally emancipated. If you were an unmarried woman you were still most likely subjected to your father. If you were a married woman, you were subjected legally to your husband. If you were a widow you were probably on your own, but that was a small class. And the social mores were such that they didn’t want women carrying guns and fighting. It doesn’t mean they didn’t in some circumstances, but it wasn’t an acceptable alternative except in an extreme emergency. So women were exempt from serving in “a well regulated militia” simply because they weren’t mentioned in any pre-constitutional Militia statutes.

Because no Colony or independent State formally enrolled women in her Militia during the pre-constitutional era, some superficial students of this subject might advance the syllogism: anyone excluded from the Militia during pre-constitutional times should (or at least may) be excluded from the Militia today; women were excluded from the Militia in that era; therefore, women should (or at least may) be excluded from the Militia today. That conclusion is false, however. For although women typically were almost entirely exemptedfrom pre-constitutional Militia service, they were never absolutely excluded. Here again, definitions are important. As has already been explained, “to exempt” means to grant someone an immunity or freedom from a liability that otherwise would attach to that individual. (footnote 1) Whereas, “to exclude” means “[t]o shut out; to hinder from entrance or admission”; (footnote 2) “to debar from participation; (footnote 3) and “to prohibit”. (footnote 4) Thus, “to exclude” means to shut out an individual from the relevant group in the first place, so that no liability related to membership in that group can ever attach to her; and therefore she requires no “exemption” from any particular liability. If the individual is subject to even a single liability related to membership, then she is not “excluded” from the group, even though she may be “exempted” from all other such liabilities. (footnote 5)

Footnotes:

1.) S. Johnson, Dictionary, ante note 50, in both the First (1755) and the Fourth (1773) Editions.

Today, women would be required to serve in “a well regulated Militia” as they have been legally emancipated since the colonial period. (footnote 3) As part of every State “regulating” her Militia, the statute would include “every able-bodied adult” as being required to serve in that State’s Militia. Obviously the social mores of today have changed as it is commonplace to have women serve in the United States Armed Forces. So to for women performing their Militia service.